Smith v. State Ex Rel. Walsh

⁵²⁷ Boyd, J., delivered the opinion of the Court: This action was brought for the use of Michael J. Walsh, the father of Sarah Walsh, for loss of the services of his child, who was killed by reason .of the alleged negligence of the appellant and Neptune E. Bowden, in wilfully and knowingly allowing a balcony on' a house owned by the appellant, and rented to Bowden, to be in a- dangerous condition. Mrs. Smith had owned- the house since J.uly, 1893, and some time in 1897 her agent rented if to Mr. Bowden, who continued to hold it, as 'monthly tenant, until after the accident, which happened on the 20th of August, 1899. She made no agreement to" repair it or keep it in repairs. Having a housekeeper in charge, the tenant rented one or more rooms to those applying for them.

Walsh rented from the housekeeper, on the 19th of August, 1899, a front room on the second floor, and the next day took his child, Sadie, who was five years and six months old, to the room. There was a back building along which a porch ran from the second story of the front building. Three rooms opened on the porch and there was a stairway leading from the middle of it (between two of the rooms) down to the yard. Mrs. Sheckels, who was an acquaintance of Walsh, occupied the rear room, and in the afternoon of the 20th of August the little girl, with the permission of her father, went to Mrs. Sheckels’ room to get some water, which she got and started along the porch towards her father’s room.

Mr. Scott, who occupied the middle room on the porch, saw her go to Mrs. Sheckels’, and just after she passed his window a second time he heard something fall. He then went on to the porch and saw the child lying below on the bricks. The balustrade had several openings in it— the balusters being out — the theory of the plaintiff being that the child fell through the one near Mr. Scott’s door. He said that opening was about three feet wide and the child was lying below it and a “ picket,” as he called it, was lying by the child when he found' her.

She was killed by the fall. The testimony shows that the balustrade was in a bad condition and had been for some time, some of the witnesses-thought it had ⁵²⁸ been for some years, judging from the appearance and condition of the wood, but that was a conjecture. Mrs. Schekels said, however, it was when she went there in.December, 1898, and that it got worse — that the balusters would fall out if you touched them. It was admitted by the plaintiff’s witnesses that the floor of the porch was sound.

Some question seems to have been raised in the testimony as to the right of Walsh to use the porch, but his own evidence, as well as that of some of the other witnesses, was to the effect that it was used by all the occupants. That was the way, and apparently the only convenient way, to get into the yard, unless they went into the front hall. A number of prayers were passed on by the Court, but under the view we take of the case it will only be necessary to consider the one which was refused, denying the right of the plaintiff to recover at all against the appellant. The case was dismissed by the plaintiff as to Bowden, and a judgment was obtained against the appellant, from which this appeal was taken.

The theory of the appellee is that at the time the property was rented it was unsafe and in a dangerous condition, which the owner knew, or could by the exercise of reasonable diligence have known, and therefore she was responsible to any one lawfully on the premises who was injured by reason of that condition, although the property was in the possession of her tenant when the accident happened. In support of that position he relies upon Owings v. Jones, 9 Md. 108 ; Albert v. State, 66 Md. 325 ; State v. Boyce, 73 Md. 469 , and other cases of a like character. There is no question about the responsibility to strangers of a landlord who leases premises which are a nuisance or must become so by their user, and receives rent, whether he is in possession or not, if injury ensue. Nor do we doubt that he may be liable to strangers if he rents his property when it is in such condition as will likely produce injury ; and if the property be of a public character he cannot with impunity rent it in an unsafe condition and, if he does, may be required to answer to those who are brought upon it, at the.instance of his lessee, for injuries they sustain.’ Our own cases have determined the liability of the owner in such cases. ⁵²⁹ The injury complained of in Owings v. Jones was received by falling into a vault, appurtenant to the property of the defendant and built under the pavement of a public street.

The boy who was injured was on a public street at the time where he and the public had the right to be, and if the owner leased the premises, with the vault appurtenant to it, which was either a nuisance at the time of the demise or must in the nature of things become so by its user, then he was unquestionably liable and could not protect himself by proving that at the time of the injury it was no - longer in his charge. So in Albert v. State, and State v. Boyce , the same principles are applied to the owners of public wharves. As was said in Alberts case, “ A wharf, furnishing the only mode of ingress and egress to a summer resort, where crowds are invited to come, if in an unsafe and dangerous condition is certainly a nuisance of the worst character. It will not do for the owner knowing its condition, or having by the exercise of any reasonable care the means of knowing it, to rent it out and receive rent for it, but escape all liability when the crash comes.

He who solicits and invites the public to his resorts, must have-them in a reasonable safe condition, and not in a condition to risk the lives and limbs of 'his visitors.” And other cases might be cited such as B. & O. R. R. Co. v. Rose, 65 Md. 485 ; Irvin v. Sprigg, 6 Gill, 200 , and Condon v. Sprigg, 78 Md. 330 , to illustrate the duty of owners of property to protect the public against injury resulting from nuisances on or appurtenant to their premises when the public has a right to be there. But those cases do not reach the question before us which is : In the absence of fraud or concealment is the landlord of the- original tenant responsible for an injury sustained by a subtenant, by reason of the condition of the premises, when rented or after-wards, such as a defective balustrade on a porch ? There is no implied covenant requiring the landlord to make repairs. Gluck v. Mayor, etc., of Baltimore, 81 Md. 326 . “There is no implied warranty'on a lease of a house, or of land, that it is or shall be reasonably fit for habitation or cultivation.

The implied contract relates only to the estate, not ⁵³⁰ to the condition of the property.” “When a lease contains no express contract of warranty that the property is or shall be fit for the purpose for which it may be rented, there is no implied warranty to that effect, and in case the property falls down in consequence of some inherent defect, the lessor is not bound to repair, and yet the lessee will be compelled to pay the rent.” Hess v. Newcomer, 7 Md. 337 . After fully recognizing the landlord’s liability to third persons, not claiming under the tenant, it is said, in Taylor on Landlord and Tenant, section 175A, that “the lessor’s liability to the lessee is, however, much more restricted. As the former does not warrant the condition of the premises, and the tenant, because he can inspect them, assumes the risk of their state; for any injury suffered by him during his occupancy by their defective condition, or even faulty construction, he cannot make the lessor answerable, unless there was misrepresentation, active concealment, or perhaps a total inability on the tenant’s part to discover the defect before entering.” There are many cases to that effect of which we will mention: Doyle v. R. R. Co., 147 U. S. 413 ; Moynihan v. Allyn, 162 Mass. 272; Gallagher v. Button (Conn.) 46 At. Rep. 819 ; Peterson v. Smart, 70 Mo. 34 ; Burdick v. Cheadle, 26 Ohio St. 393 ; Purcell v. English, 86 Ind. 34 ; Brewster v. De Fremery, 33 Cal. 341; Murray v. Albertson, 50 N. J. L. 167; Cole v. McKey, 66 Wis. 500 ; Towne v. Thompson, 68 N. H. 317; Bowe v. Hunking, 135 Mass. 380 ; Whitmore v. Orono Company, 91 Me. 297 ; Jaffe v. Harteau, 56 N. Y. 398 .

The reason of the rule is perfectly apparent. If the lessee knows the condition of the premises and rents it without requiring the owner to repair it, he takes it as he finds it and has no right to complain of injuries sustained on account of its condition. The owner not being compelled